The opinion of the court was delivered by: SIRICA
This is a suit to declare null and void the action of the Secretary of the Army in discharging plaintiff from the United States Army Reserve, Ready Reserve, by means of an 'undesirable discharge' prior to the normal expiration of his military service, and to have this Court direct the Secretary to issue an 'honorable' discharge in its place.
The plaintiff was inducted into the Army on February 13, 1953, under the Universal Military Training and Service Act of 1948, as amended, 50 U.S.C.A.Appendix, § 451 et seq.
He was honorably separated from active service on December 15, 1954, to complete eight years service in the Reserve as provided by the above statute.
'a. You are a member of the Labor Youth League, an organization cited in 1950 as a Communist front by the Attorney General of the United States, and in June, 1955, you attended a social affair sponsored by that organization * * *.
'b. In June 1955 you attended the Jefferson School of Social Science, an organization cited in 1949 as an 'adjunct of the Communist Party' by the Attorney General of the United States * * *'.
The letter also informed the plaintiff that he must decide to take one of four alternative courses of action:
(1) Elect not to reply to the allegations;
(2) Within 5 days of receipt of the letter, submit a request in writing to the Commanding General, First Army, for a personal appearance hearing before a 'Field Board' of inquiry;
(3) In lieu of appearance before a board, submit within 15 days a letter of rebuttal together with such affidavits, statements or other documentary evidence as he may desire to submit;
(4) Or, in lieu of further proceedings, request retirement, if eligible, or request discharge.
Plaintiff chose to reply to the allegations by letter rather than to submit to a hearing. He stated, among other things, that the effect of any discharge less than honorable was punitive in nature; that any punishment because he engaged in lawful political activities was clearly in violation of his constitutional rights under the First and Fifth Amendments of the Constitution; that he had been informed by his attorney that under applicable regulations the hearing afforded by the Army would be a sham in that he would have no right at the hearing to confront those who testified against him or to cross-examine so-called confidential informants, etc.
Shortly thereafter, he received an undesirable discharge. Applications for review by the Army Discharge Review Board and the Army Review Board for the Correction of Military Records were denied. Thus, it appears that plaintiff has exhausted his administrative remedies.
Plaintiff filed a motion for summary judgment and defendant filed a motion to dismiss or cross-motion for summary judgment. Thus, counsel for the parties have conceded that there are no ...